Dallas Bar Association HEADNOTES

HEADNOTESDallas Bar Association

HEADNOTES

9 Working With Adjusters for the Non-Specialist

12 2012 Bench Bar Conference

15 Recognizing Life Insurance Beneficiary Disputes

Inside

Focus Tort & Insurance PracticeNovember 2012 Volume 37 Number 11

November Focus: Tort & Insurance PracticeThis month’s Headnotes articles focus on the topic of Tort & Insurance Practice.

The DBA Tort & Insurance Practice Section provides CLE presentations that offer competing views on cutting-edge issues and explores the intricacies and

interwoven nature of tort and insurance law. Join this Section for $20, by contacting [email protected].

Payne Mitchell Law Group and Justice Deborah Hankinson Donate

$25,000 to EAJ Campaign

“Doing the right thing” has been the man-tra of legal aid programs for years. The well and possibly overused argument for upholding civil legal aid for the poor through pro bono service and financial support speaks to the noble sides of lawyers who aspire to open justice. But, when it comes to the skeptics or simply those who want to know that their contributions to legal aid pro-grams are well spent, it comes down to facts and figures and the bottom line economic incentives for supporting legal aid to the poor.

In recent years, more focus has been placed on the economic impact of legal aid programs on our communities. The data has upheld what many of us have always believed—that legal aid programs not only make a difference in the lives of the poor, but they also have a significant impact on the economic health of our commu-nities.

The Perryman Group studied the economics of legal aid in 2009 and issued a report entitled “The Impact of Legal Aid Services on Economic Activity in Texas: An Analysis of Current Efforts and Expansion Potential.” The study also found that the activity generated approximately $30.5 million in yearly fiscal revenues to state and local governmental entities.

Closer to home, the Dallas Volunteer Attor-ney Program (DVAP) volunteer attorneys helped clients realize over $1.5 million in annualized benefits in 2011. With additional income, clients are less likely to need food stamp, Medicaid and housing assistance from local, state and federal resources, and they also have more funds to put back into our local economy. This is an impact

that not only helps our clients in their daily lives, but helps our community as a whole.

This is what Andy Payne and Jim Mitchell, of Payne Mitchell Law Group, are doing with their $25,000 gift to this year’s Equal Access to Justice Campaign—making an impact on individual cli-ents while helping our community as a whole.

“Equal Access to Justice not only helps preserve the legal rights of our fellow citizens who cannot afford a lawyer, it also has a significant economic impact on their lives and our community” said Mr. Payne. “We are grateful that Payne Mitchell can again support the important work of the Dallas Vol-unteer Attorney Program.”

Payne Mitchell Law Group has supported the campaign since 2007 with over $126,000 in dona-tions. Giving from the heart with an eye towards the practical impact, Payne Mitchell’s donation will continue to help DVAP clients stand on their own two feet and become more capable of better supporting themselves and, in turn, the local econ-omy.

Justice for All is a great cause that embodies the idealism of an open legal system with practical eco-nomic results that are very relevant to our times,” added Mr. Mitchell. “We are proud to be a part of it.”

Justice Deborah Hankinson, of Hankinson LLP, is also supporting this year’s Equal Access to

Justice Campaign benefitting the Dallas Volun-teer Attorney Program with a $25,000 donation. Justice Hankinson’s commitment is not just a gift to DVAP, it demonstrates her firm commitment to the positive impact that access to justice can have on everyone. “One of the things on which all Americans agree is that justice should not be based on what you can afford to pay for it,” said Justice Hankinson. A steadfast supporter of legal aid, Justice Hankinson has donated countless hours to the cause on a statewide and national level and $216,000 to the Equal Access to Justice Campaign over the years.

For more information on the Campaign or the Dallas Volunteer Attorney Program, please visit www.dvapcampaign.org or contact Alicia Hernan-dez at (214) 220-7499 or [email protected]. Recognition levels and donor benefits are available. All individual donors at the $1,000 level and above and all firm and corporate donors at the $5,000 level and above will be recognized in an ad in the Dallas Morning News during the week of December 16, 2012, in The Texas LawBook and in Texas Law-yer in January or February 2013. HN

Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at [email protected].

by AliciA HernAndez

Doing the Right Thing

Andy Payne and Jim Mitchell Justice Deborah Hankinson

www.dvapcampaign.org

THURSDAY, NOVEMBER 1Noon Construction Law Section “An Update on Insurance Coverage for Defective

Construction,” Lee Shidlofsky. (MCLE 1.00)*

Family Law Section Board Meeting

Judiciary Committee

Lawyer Referral Service Committee

St. Thomas More Society

FRIDAY, NOVEMBER 23:30 p.m. DBA Annual Meeting

MONDAY, NOVEMBER 5Noon Tax Law Section “Hot Topics in Texas LLCs: Avoiding Drafting

Pitfalls in Company Agreements and Preserving the ‘LL’ (Limited Liability) in the LLC,” Prof. Elizabeth Miller. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, NOVEMBER 6Noon Corporate Counsel Section “Insurance 101: Fundamentals of Liability

Insurance for In-House Counsel,” Amy Elizabeth Stewart. (MCLE 1.00)*

Morris Harrell Professionalism Committee

WEDNESDAY, NOVEMBER 7Noon Employee Benefits & Executive

Compensation Law Section “News You Can Use: DOL Updates,” Deborah L.

Perry. (MCLE 1.00)*

Intellectual Property Law Section “Untangling Aspects of Complex Intellectual

Property Litigation,” Leon Carter, Glenn Newman, Steve Shortgen and Sanford Warren. (MCLE 1.00)*

Solo & Small Firm Section “Estate Tax Planning – Year End and Beyond

– Practical Knowledge, Guidelines and Forms,” James V. Roberts. (MCLE 1.00)*

Public Forum Committee

5:30 p.m. Bankruptcy & Commercial Law Section “Privacy & Data Protection in Bankruptcy,”

Camisha L. Simmons. (MCLE 1.00)*

6:00 p.m. DAYL Board of Directors Meeting

THURSDAY, NOVEMBER 811:00 a.m. Federal Bar Association

11:30 a.m. DAYL Lawyers Serving Children

Noon CLE Committee

Law in the Schools & Community Committee

Publications Committee

Christian Lawyers Fellowship

Dallas Asian American Bar Association

6:00 p.m. J.L. Turner Legal Association

FRIDAY, NOVEMBER 9Noon Friday Clinic-North Dallas** “Recent Developments in Eminent Domain

Law – Texas Senate Bill 18,” Florentino Ramirez. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to [email protected].

Government Law Section “Confidential Communications, Data Security,

and Privacy in the Cloud,” Peter B. Haskel. (Ethics 1.00)*

Tort & Insurance Practice/Trial Skills Sections

“Making the Courtroom Your Living Room,” Rusty Hardin. (Ethics 1.00)* Co-sponsored by DAYL, Texas Association of Defense Counsel and Dallas Trial Lawyers Association.

DAYL Lunch & Learn CLE. For more information contact [email protected].

MONDAY, NOVEMBER 12Noon Alternative Dispute Resolution Section “Negotiating Using Settlement Counsel: Legal,

Practical and Ethical Considerations,” Chris Nolland. (Ethics 1.00)*

Real Property Law Section “Ethical Issues in Representing Multiple Clients

in Real Estate Transactions,” Prof. Fred Moss. (Ethics 1.00)*

TUESDAY, NOVEMBER 139:00 a.m. Directory Photo Sessions Available at Belo

Noon Business Litigation Section “Dealing and Communicating With Problem

Clients and Problem Colleagues,” William J. Chriss. (MCLE 1.00)*

Mergers & Acquisitions Section “2012 M&A Review and 2013 M&A Outlook,”

Mike McGill and Shawn D. Terry. (MCLE 1.00)*

Entertainment Committee

Dallas Bar Foundation Board Meeting

4:00 p.m. DAYL Swearing In Ceremony

6:00 p.m. Home Project Committee

WEDNESDAY, NOVEMBER 147:45 a.m. Dallas Area Real Estate Discussion Group

11:30 a.m. House Committee Walk Through

Noon Family Law Section “Childhood Development Milestones and What

They Mean,” Dr. Dean Beckloff. (MCLE 1.00)* Speakers Committee

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

THURSDAY, NOVEMBER 159:00 a.m. Directory Photo Sessions Available at Belo

Noon Appellate Law Section Topic Not Yet Available Minority Participation Committee

Christian Legal Society

Dallas Gay & Lesbian Bar Association

3:30 p.m. DBA Board of Directors Meeting

5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at [email protected]. or (214) 220-7414.

FRIDAY, NOVEMBER 16Noon Friday Clinic-Belo Topic Not Yet Available

Transition to Law Practice Program “The Beginning Lawyer’s Opportunities in and

Responsibilities to the World Beyond the Office,” Aubrey Myers, Laura O’Rouke, Tom Stutz and Aaron Tobin. (Ethics 1.00)*. All members welcome.

MONDAY, NOVEMBER 19Noon Labor & Employment Law Section “ADR Update,” Cecilia Morgan. (MCLE 1.00)*

Criminal Justice Committee

DBA Community Service Fund Board Meeting

TUESDAY, NOVEMBER 20Noon Antitrust & Trade Regulation Section “A Cybercrime Primer,” Rose Romero. (MCLE

1.00)*

International Law Section “How to Find What You Need to Know on

Immigration Law,” Eugene J. Flynn. (MCLE 1.00)*

Community Involvement Committee

DAYL Animal Welfare Committee

DAYL Elder Law Committee

WEDNESDAY, NOVEMBER 21Noon Energy Law Section Topic Not Yet Available

Health Law Section “Physician peer Review and Credentialing,”

Sherri Alexander. (MCLE 1.00)*

Non-Profit Law Study Group

THURSDAY, NOVEMBER 22DBA Offices closed in observance of Thanksgiving

FRIDAY, NOVEMBER 23DBA Offices Closed

MONDAY, NOVEMBER 26Noon DAYL Solo & Small Firm Committee

TUESDAY, NOVEMBER 27Noon Probate, Trust & Estate Section “Drafting, Attacking and Defending Pre and

Post Marital Agreements,” Norm Lofgren. (MCLE 1.00)*

Courthouse Committee

American Immigration Lawyers Association

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, NOVEMBER 28Noon Pro Bono Activities Committee

DVAP New Lawyers Luncheon. For more information, contact [email protected].

DAYL Equal Access to Justice Committee

Municipal Justice Bar Association

THURSDAY, NOVEMBER 298:30 a.m. DBA Diversity Summit. Featured speakers

include Jack Balagia, Janet Dhillon, Robert J. Grey, Roland Martin, Dr. Walter Sutton, Jr. and many more. Register online at www.dallasbar.org/diversitysummit

Noon Criminal Law Section “Blood Test Evidence,” Dr. Gary Wimbish.

(MCLE 1.00)*

FRIDAY, NOVEMBER 30Noon DAYL CLE Committee

2 Headnotes l Dal las Bar Assoc ia t ion November 2012

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION.

*For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447.**For information on the location of this month’s North Dallas Friday Clinic, contact [email protected].

Calendar November Events Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY CLINICSNOVEMBER 9-NORTH DALLAS**Noon “Recent Developments in Eminent Domain Law – Texas Senate Bill 18,” Florentino Ramirez. (MCLE 1.00)*

At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to [email protected].

NOVEMBER 16-BELONoon Topic Not Yet Available

DBA DUES REMINDER:Your 2013 DBA DUES STATEMENT was mailed to your preferred mailing address on October 11, 2012! 2013 DBA DUES must be paid

by December 31, 2012 to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!

KoonsFuller Receives Lisa Blue and Fred Baron Access to Justice Award

At the Pro Bono Awards Celebration on October 18, KoonsFuller was presented with the Lisa Blue and Fred Baron Access to Justice Award, which is given jointly by the DBA and Legal Aid of NorthWest Texas to a deserving individual, group or organization for their outstanding dedication to pro bono work and serving those less fortunate. Joel Winful, Board Chair Legal Aid of NorthWest Texas (right), presents the award to Ike Vanden Eykel of KoonsFuller.

November 2012 Dal las Bar Assoc ia t ion l Headnotes 3

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Nearly 300 years after the institution of slavery was introduced into what would someday become these United States, and a little over 30 years after Emancipation, the U.S. Supreme Court ruled in its 1896 Plessy v Ferguson deci-sion that separate but equal was equal.

During the ensuing 50-plus years, people of conscience continued striving daily to build a better life for themselves and their progeny, while simultaneously continuing their struggle for all Americans to realize those inalienable rights guaranteed in their Constitution—among them, life, lib-erty, the pursuit of happiness—in addition to full citizen-ship and equality under the law.

In its seminal 1954 Brown v Board decision, the U.S. Supreme Court overturned the Plessy precedent, ruling that separate but equal is not equal. In Brown, the Court went on to state that integration should be accom-plished “with all deliberate speed.” The vagueness of the term endures today.

In the generations since Brown, we have travelled deliberately, at varying speeds, but the vestiges of what can be considered a bygone era remains. Its echo is evident in our educational sys-tem, employment opportunities and soci-etal disengagement. It manifests itself in the disparity between various segments of our populous, and the discontent associated therewith. It was, and continues to be, a strug-gle to fulfill America’s promise and to live out the true meaning of a creed that all citizens are created equal. Valuing diversity and ensuring equal opportunity for all are integral to fulfilling this promise—a promise that will ensure the vitality of the republic for generations hence.

On the heels of advocacy surrounding another attempt by our nation’s high court to address an aspect of diversity—in this instance, a case involving university admissions which will have far-reaching implications for the future of diversity within our educational system and our nation as a whole—we must reflect on our own efforts individually and collectively to advance the cause of diversity within our profession and throughout our society. Promoting diver-sity, tempered with the challenges of ensuring fairness while providing equal access and opportunity to all, takes cour-age and commitment. We reflect upon our own efforts in this regard as we await the promulgations of this court and future courts.

But how does diversity translate in our local legal mar-ket? The Dallas Bar Association (founded in 1873) pre-dates Plessy, and is one of the oldest, most vibrant and most respected bar associations in the country. For decades, the DBA and the sister bars have worked together to promote a diverse and inclusive legal environment. Suffice to say, however, that this spirit of diversity and collaboration has not always been so. Much like the high court, the Dallas legal community and its bar associations are not immune from changing precedent.

Progress has been made though the Dallas Bar Asso-

ciation, the sister bars and countless other stakeholders—armed with knowledge and conviction, steadied by courage and committed to positive change for the profession.

The type of commitment and conscience that admitted Fred Finch as the DBA’s first African American member in 1963 and admitted C.B. Bunkley and W.J. Durham post-humously in 2006.

The type of courage that resulted in the DBA’s Task Force on Opportunities for Minorities in the Profession’s Long Range Plan for Inclusion promulgated in 1990, which (among other goals) called for increased minority lawyer participation in the DBA, an enhanced relation-ship between the DBA and the Minority Bar Associations,

increased economic opportunities for minority lawyers and an increased pres-ence of minority lawyers in majority law firms.

The type of conviction that resulted in the DBA’s Statement of Goals of Dallas Law Firms and Corporate Legal Departments for Increasing Minor-ity Hiring, Retention and Promotion (1994), which reinforced the goals of the Long Range Plan for Inclusion, with many of Dallas’ largest and most prominent firms as signatories, as well as endorsements by all of the major bar associations in Dallas.

The Dallas Bar’s commitment to diversity and inclusion is also evident in various other promulgations of the Dal-las Bar, including its By Laws, the “A Bar

For All” Report of 2008, and the Vision 2020 Strategic Plan (2010). The goals,

objectives, aspirations and philosophy embodied in these doc-uments and others have endured and will continue to endure.

DBA’s commitment to a diverse profession and bar asso-ciation is also evident through its programming, includ-ing mentoring at Dallas ISD, through the Big Brothers Big Sisters Amachi program, and at SMU and Texas Wesleyan law schools; through its commitment to Pipeline Projects, including Mock Trial, the Summer Law Intern Program and Law in the Classrooms; and through the Dallas Bar Foun-dation’s Sarah T. Hughes Diversity Scholarships, funded in part through the efforts of Bar None and the annual “An Evening With” dinner.

With this history, and in this spirit, the DBA’s Diversity Summit will be held on Thursday, November 29, 2012 from 8:30 a.m. to 4:30 p.m. at the Belo Mansion. The purpose of the Diversity Summit is to promote diversity within the legal profession by focusing on best practices through discus-sions with attendees and representatives from law schools, law firms, corporate counsel and bar associations. For addi-tional information on this must-attend event, please visit www.dallasbar.org/diversitysummit.

Precedents can be affirmed, rejected or established. Like those courageous trailblazers who have preceded us to cre-ate our path, there is still much work to be done to achieve the type of profession which we desire—the type of profes-sion which we deserve. HN

Precedential Electionby PAul K. StAfford

President's Column


HeadnotesPublished by:

DALLAS BAR ASSOCIATION

2101 Ross AvenueDallas, Texas 75201

Phone: (214) 220-7400Fax: (214) 220-7465

Website: www.dallasbar.orgEstablished 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERSPresident: Paul K. StaffordPresident-Elect: Sally CrawfordFirst Vice President: Scott McElhaneySecond Vice President: Brad C. WeberSecretary-Treasurer: Shonn BrownImmediate Past President: Barry Sorrels

Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large).

Advisory Directors: Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association).

Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang

Directors, State Bar of Texas: Lawrence Boyd, Christina Melton Crain, Ike Vanden Eykel, Andy Payne, Frank E. Stevenson, II

HEADNOTESExecutive Director/Executive Editor: Catharine M. MaherCommunications/Media Director & Headnotes Editor: Jessica D. SmithIn the News: Judi SmallingArt Director: Thomas PhillipsDisplay Advertising: Karla Howes, Jessica SmithClassified Advertising: Judi Smalling

PUBLICATIONS COMMITTEECo-Chairs: Vincent J. Allen and Lea DearingVice-Chairs: Natalie L. Arbaugh and Dawn FowlerMembers: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager

DBA & DBF STAFFExecutive Director: Catharine M. MaherAccounting Assistant: Shawna BushCommunications/Media Director: Jessica D. SmithController: Sherri EvansDirector of Community Services:Alicia HernandezEvents Coordinator: Rhonda ThorntonExecutive Assistant: Mary Ellen JohnsonExecutive Director, DBF: Elizabeth PhilippLRS Program Assistant: Biridiana AvinaLRS Interviewer: Marcela MejiaLaw-Related Education & ProgramsCoordinator: Amy E. SmithMembership Coordinator: Kimberly WatsonProjects Coordinator: Kathryn ZackPublications Coordinator: Judi SmallingReceptionist/Staff Assistant: Teddi Rivas

DALLAS VOLUNTEER ATTORNEY PROGRAMDirector: Alicia HernandezManaging Attorney: Michelle AldenVolunteer Recruiter: Chris Reed-BrownParalegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina DouglasProgram Assistant: Patsy Quinn

Copyright Dallas Bar Association 2012. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Execu-tive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to [email protected] (Communications Director) at least 45 days in advance of publication. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.

All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.

Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.


In June 2012, the Fifth Circuit issued its opinion in Downhole Naviga-tor, L.L.C. v. Nautilus Insurance Com-pany, 686 F.2d 325 (5th Cir. 2012), affirming the district court’s ruling that the insured was not entitled to select its own defense counsel at the insurer’s expense. Analyzing Texas law, the Fifth Circuit concluded that the facts to be adjudicated in the underlying lawsuit against the insured were not the same facts on which coverage turned, as required to preempt the insurer’s right to control the defense.

Downhole, an oil drilling servicer, was hired by an oil well operator to redirect a well toward a better location within a particular reservoir. Downhole developed a plan to conduct the devia-tion and participated in the deviation process, during which the well was dam-aged. The well operator sued Downhole for negligence in Texas state court.

Downhole notified its commercial general liability insurer of the law-suit. The insurer tendered a qualified defense, reserving its right to deny cov-erage based on several policy exclu-sions, including: (1) the “expected or intended injury” exclusion; (2) the “property damage” exclusion, which excluded certain “physical injury to tan-gible property;” and (3) the “testing or

consulting” exclusion, which excluded damages arising from an error, omission, defect or deficiency in any test per-formed or in any evaluation, consulta-tion or advice given.

The policy also contained a “profes-sional liability” exclusion, excluding damages arising from “the rendering of or failure to render any professional services,” including the preparation or approval of opinions, reports, surveys, drawings, specifications and the like. Finally, the policy’s “data processing” exclusion excluded damages arising from the rendition of or failure to ren-der electronic data processing services.

Based on the reservation of rights, Downhole rejected the qualified defense and engaged its own defense counsel. When the insurer insisted that Down-hole had no right to independent coun-sel “unless or until” a coverage issue developed, Downhole filed suit seek-ing a declaration that the insurer was required to defend, cover the cost of independent counsel, and indemnify it in the underlying lawsuit.

The issue in the underlying case was whether Downhole negligently per-formed its work for the oil well opera-tor. The coverage dispute, on the other hand, turned on the exclusion for test-ing or consulting services, the expected or intended injury exclusion, the prop-erty damage exclusion, and the profes-

sional liability exclusion. The Fifth Circuit concluded that these exclu-sions raised issues that would never be addressed in the underlying case. And whether Downhole acted negligently, which would be decided in the underly-ing case, did not impact the coverage issues.

[T]he underlying fact-finder will not decide whether Downhole’s work constituted “testing” or “consulting.” Likewise, while several other issues—whether Downhole provided “profes-sional” or “data processing” services to Sedona, whether Downhole should have expected the damage to the well resulting from its work, or whether Downhole was occupying the property while providing its deviation-correction services—could be critical coverage issues, they are irrelevant to whether Downhole acted negligently. Because the issues in the coverage dispute were not the issues to be determined in the underlying case, the court ruled that the insured did not have a right to inde-pendent counsel.

The test applied by the Fifth Cir-cuit comes from Northern County Mutual Insurance Company v. Davalos, 140 S.W.3d 685 (Tex. 2004), in which the Texas Supreme Court recognized that circumstances exist in which “an insurer may not insist upon its contrac-tual right to control the defense.”

In the typical coverage dispute, an insurer will issue a reservation of rights letter, which creates a potential con-flict of interest. And when the facts to be adjudicated in the liability lawsuit are the same facts upon which cover-age depends, the conflict of interest will prevent the insurer from conducting the defense.

In reaching its conclusion, the Fifth Circuit rejected Downhole’s argument that facts could be developed in the underlying litigation that might be used to disclaim coverage. The court noted, moreover, that the insurer would breach its duty to defend if it directed defense counsel to advance the insurer’s interest at the expense of the insured.

Although the prospect that the attorney provided by Nautilus could develop facts harmful to Downhole’s pursuit of coverage does not itself raise an actual conflict, if the attorney (at Nautilus’s direction) improperly advanced Nautilus’s interests at the expense of Downhole’s interests, Nau-tilus would breach its duty to defend Downhole. Such breach would free Downhole to reject the counsel pro-vided by Nautilus and entitle Down-hole to reimbursement for the cost of its own independent counsel. HN

Amy Elizabeth Stewart is managing shareholder of Amy Stewart PC. She can be reached at [email protected].

by Amy elizAbetH StewArt

Focus Tort & Insurance Practice

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John O’Connor Recognized as Pro Bono Lawyer of the Year

Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of Northwest Texas, honors the lawyers, judges and other legal professionals who donate pro bono services.

At the Annual Pro Bono Awards Reception on October 18, the Dal-las office of Fulbright & Jaworski L.L.P. was recognized as Pro Bono Law Firm of the Year for providing nearly 2,000 hours of pro bono ser-vices to DVAP clients.

The international law firm encourages its attorneys to partici-pate in pro bono work throughout the year and firm-wide its lawyers have donated tens of thousands of hours to pro bono matters in the United States and internationally. Fulbright & Jaworski’s culture of commitment to public service con-tinues to serve as a pillar of the firm’s philosophy.

John O’Connor, an associate in the Dallas office of Weil, Gotshal & Manges, LLP, was named Pro Bono Lawyer of the Year.

Mr. O’Connor contributed nearly 500 hours of pro bono ser-vice through his participation in the 2011 DVAP Lend-A-Lawyer Pro-

gram. The program created by Weil, Gotshal & Manges, LLP in 2006 gives young lawyers an opportunity to learn about pro bono over a three-month period by serving full-time at the DVAP offices.

Mr. O’Connor focuses on com-plex commercial litigation as well as arbitration and mediation and serves on Weil’s Pro Bono Committee. His commitment to pro bono was also recognized recently by the State Bar of Texas with the 2012 Frank J. Scur-lock Award for outstanding pro bono work.

DVAP congratulates Fulbright & Jaw-orski L.L.P. and John O’Connor. HN

Pamela Perdue Musgrove 2013 DLA President

The 87th President of the Dal-las Lawyers Auxiliary, Pamela Perdue Musgrove, definitely has a song in her heart! Born in Muskogee, Oklahoma, she is a graduate of the University of Oklahoma with a Bachelor of Fine Arts in Vocal Performance. While at OU she lived on campus at the Pi Beta Phi house. As good fortune would have it, future husband Len Musgrove, Jr. just happened to have a job there as a houseboy while he attended OU’s School of Law. He was also a talented musician, and quickly noted that Pam was an amazing singer who occasion-ally needed a piano man. Wouldn’t you know he picked the prettiest girl in the house, and they have been making beautiful music together ever since!

Len is a San Antonio native, and did his undergraduate work at South-ern Methodist University. After they were married, the Musgroves lived in Midland, Texas for three years and then moved to Dallas where they have resided for the last 23 years. Len’s first job in Dallas was with the law firm of Arter and Hadden. He later became the managing partner in the firm of Bellinger and DeWolf, LLP. Recently, Len founded his own firm, Musgrove Law Firm, P.C.

Music is never far away at the Mus-grove house. Pam and Len perform together in several Dallas party bands with bookings at some of Dallas’ top spots, as well as corporate parties, charitable events, weddings, commu-nity theatre, etc. Pam is often called upon to sing her a capella version of the National Anthem, which she does to

perfection. She also sings lead for the Discovery Mass Band at St. Michael and All Angels Episcopal Church, and has been referred to as the “Aretha Franklin of the Episcopal Church.”

Pam and Len are the proud parents of two lovely teenage daughters, Mad-ison, 16, who attends Dallas Lutheran School, and M’Lynn, 14, who attends Parish Episcopal School. They also love to sing and perform. Pam’s parents, Win-nie and Ron Perdue, and sister, Melissa Perdue, reside in Tulsa, Oklahoma.

Pam’s community involvement includes the Junior League of Dallas (Sustainer), the Jr. Group of the Mari-anne Scruggs Garden Club, Jr. Group of the Dallas Symphony and The Dal-las Opera. Pam’s favorite pastimes are tennis and, of course, singing.

Pam is honored to serve, and is look-ing forward to her year as President of the Dallas Lawyers Auxiliary. It is certain to be an entertaining year! HN

Mary Lee Cox is past president of the Dallas Lawyers Auxiliary. She may be reached at (214) 368-1421.

StAff rePort

by mAry lee cox

Fulbright & Jaworski Recognized as Pro Bono Law Firm of the Year

With a Song in My Heart

DVAP’s FinestAbby Ruth

Abby Ruth is a Senior Associate at Fulbright & Jaworski L.L.P., specializing in business litigation. She has success-fully handled numerous divorce matters for DVAP, many of which posed unique factual and procedural issues. Specifi-cally, Abby has handled matters where she addressed vari-ous complications, including overseas and foreign respon-dents, unavailable respondents and spouses filing for divorce prior to the DVAP client’s initial consultation with counsel. Thank you for all you do, Abby!

Pro Bono: It’s Like Billable Hours for Your Soul.To volunteer or make a donation, call 214/748-1234, x2243.

•2012 Pro Bono Awards•Law Firm of the Year

Fulbright & Jaworski L.L.P.

Lawyer of the YearJohn O’Connor, Weil, Gotshal &

Manges LLP

Lisa Blue and Fred Baron Access to Justice Award

KoonsFuller

Gold Award for Pro Bono ServiceBaker Botts, L.L.P.

Bracewell & Giuliani LLPHaynes and Boone LLP

Patton Boggs LLP

Silver Award for Pro Bono ServiceAkin Gump Strauss Hauer & Feld LLP

The Bassett FirmJones Day

Weil, Gotshal & Manges LLP

Bronze Award for Pro Bono ServiceAmerican Airlines, Inc.

Andrews Kurth LLPLocke Lord LLP

Vinson & Elkins LLP

Hartman Judicial Pro Bono Service Award

Hon. Tena Callahan, 302nd District Court

Outstanding New Pro Bono Lawyer Dan Nathan, Attorney at Law

Pro Bono Coordinator of the Year Kendall Hayden, Cozen O’Connor

Pro Bono Appreciation Award Paul K. Stafford, Carter Stafford PLLC

Outstanding Clinic Sponsor Prudential Investment Company

Outstanding Outreach Clinic Attorney

Craig Collins, Attorney at Law

Outstanding Clinic Attorney Volunteers

West Dallas Clinic Russ Hubbard, American Airlines, Inc.

Garland Clinic L. Brad Johnson,

L. Brad Johnson, PLLC

South Dallas Clinic Lisa Shirley,

Simon Greenstone Panatier Bartlett

East Dallas Clinic Justin Connor, Fulbright & Jaworski

L.L.P.

Lois Bacon Special Services AwardDAYL Elder Law Committee

Pro Bono Court Reporter of the Year

Glenda Johnson, 256th Family District Court

Outstanding Court PersonnelTwyla Weatherford,

302nd Family District Court

Outstanding Support VolunteerJanet McClain,

Texas Health and Human Services

Outstanding In-House VolunteerIlene Breitbarth, Attorney at Law

Pamela Perdue Musgrove

Pro Bono Attorney of the Year John O’Connor and Joel Winful, Board Chair Legal Aid of NorthWest Texas.

Joel Winful (right) presents the award for Pro Bono Law Firm of the Year—Fulbright & Jaworski L.L.P.—to attorney Michael Regitz.


When fortune and family matter,trust yours to Kelly McClure.

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The McClure Law Group is comprised of seasoned, high-octane attorneys who deliver meaningful results when fortune and family matter. Kelly McClure and the team at McClure Law Group expertly navigate the complexities of divorce, division of assets, custody, pre-and post-marital agreements and modifications.

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Healthcare fraud is a government priority. Understanding how the govern-ment audits providers can help a pro-vider minimize their liability if they are under investigation.

Services Not RenderedThe government often examines

whether services billed were actually rendered. One technique for doing so is examining the amount of time the provider spends with each patient. The government divides the number of hours the provider is in the office by the num-ber of patients seen during that day. If the time per patient is unreasonable in the government’s opinion, it may take the position that the provider did not see all of the patients and/or did not see the patients long enough to adequately provide the service. The government has a stronger case in cases where the billing codes are time based. The gov-ernment may also examine a provider’s travel and credit card records to deter-mine which days he or she was in the office, and compare that analysis with

billing records.If the government concludes that

unqualified personnel must be treat-ing patients because of the number of patients seen and/or the provider is not spending adequate time with each patient, the government views this as a quality of care issue. When there is a quality of care issue, the government is much more likely to suspend payments. If services are not being rendered at all, a criminal indictment is also possible.

The provider needs to ensure that she is spending adequate time with each patient. It is also helpful to have the appropriate provider document and sign the charts contemporaneously upon treatment. Such a policy can help “prove” that the provider personally pro-vided the service.

NecessityNecessity is another critical issue. If

the government can successfully chal-lenge the determination of necessity, then in certain areas, the government can take the position that all charges paid for a patient were improper.

The person making the determina-

tion of necessity must be qualified. If the requirement in a particular area is that a doctor must make the determi-nation, this task cannot be delegated to an assistant. The government will also examine how and if the person mak-ing the determination of necessity is compensated. If it is an unrelated indi-vidual, the government will examine whether there are improper payments, or potentially kickbacks. If it is some-one affiliated with the entity, the gov-ernment will examine whether the pro-fessional is being paid fair market value and whether the compensation is based on the number of patients approved for treatment or revenue. Again, such com-pensation arrangements can be viewed as a kickback.

Upcoding and UnbundlingThe government often examines

whether a provider is consistently cod-ing a more complex procedure, for which the reimbursement is higher, rather than a less complex version of that same pro-cedure. This is called upcoding. It is critical that the documentation in the patient chart supports the level of ser-vice that is being provided.

Unbundling is where one proce-dure is split up and billed as a number of individual procedures to maximize reimbursement. When two procedures are performed together and there is one lower paying “combination” billing code, that code must be used.

KickbacksKickbacks can be gifts or benefits to

referral sources, beneficiaries or employ-ees. These are typically easier cases for the government to prove than cases that turn largely on expert testimony regard-ing complex medical procedures. It is good practice not to make any substan-

tial gifts to referral sources or any gifts at all to beneficiaries, such as rebates or gift cards. The government also some-times takes the position that employee compensation based upon revenue is a kickback.

A provider’s marketing practices may be examined, including advertising and mailed materials. Providers need to ensure that their marketing professionals know what is appropriate in the health-care field, what is generally accepted in many other industries may be illegal in the healthcare industry.

While the Federal Criminal Anti-Kickback Statute prohibits remunera-tion for referrals wholly or partially paid for by government funds, the Texas law is much broader. The Texas Patients’ Solicitation Act prohibits any remunera-tion for soliciting or securing a patient or patronage for or from a person licensed, certified, or registered by a state health-care regulatory agency.

Proactive MeasuresIn addition to severe monetary sanc-

tions, the government has the ability to require a provider to have a corporate monitor, place a monetary hold or sus-pend payments to a provider, exclude a provider from government programs and even bring criminal charges against a provider. The collateral consequences from a government investigation may also implicate licensure issues with the State Board.

One of the most basic things a pro-vider can do to minimize liability is to accurately chart to support the services rendered and know the rules. HN

Sarah Wirskye is a partner with the firm of Meadows Collier. She represents individuals and entities in civil and criminal disputes with the federal and state governments. She can be reached at [email protected].

by SArAH Q. wirSKye

Healthcare Fraud Investigations on the Rise

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Coaches are needed to instruct teams for the 2012-2013 mock trial season (a criminal case). Firms and partners can adopt teams as well. Dates and times vary with the schools.

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The following provides the non-specialist some approaches for working with insurance adjusters in claim nego-tiations, and are based on 20 years of working both for and against insurance companies:

1. Know your case. In addi-tion to the details of the case, know its value, research verdicts and talk to other attorneys. There are a number of resources to help you, the primary one being the American Association for Justice (formerly the ATLA), as well as trial reporting services. You do not want your demand to be so high as to cause the company to dig in, or so low that you fail to maximize settle-ment value. My experience has been that cases settle more quickly and for a higher value if you slightly under price the initial demand.

To arrive at a dollar value, while the old formula of trebling special damages may be outdated, it still serves as a starting point. Adjustments to the formula can be made based upon type of injury (soft tissue vs. hard tissue), comparative negligence and whether the claim involves any sort of disfig-urement.

2. Know who you are dealing with. This applies to both the company and the individual adjusters. I once had a plaintiff ’s attorney list for me the dif-ferent branch offices of one insurance company I worked for, who was in those offices and how those offices and indi-viduals were likely to approach claims. While the same principles are regularly employed in claim evaluation, differ-ent companies have different cultures

and approaches. Some companies are tough. Some are not. I worked for one company that absolutely did not want to take cases to trial. This approach drove up settlement values since attor-neys knew about it. Other companies take very hard lines. In one simple per-sonal injury claim, the adjuster called me on a Saturday to lower his settle-ment offer because he thought I would not be in the office. The point is you need this information to help you with your approach to settlement.

3. Be organized and timely. While it can be difficult to always be timely and consistent in provid-ing information and responding to requests, adjusters have more respect and will be more responsive to the extent you are proactive. Adjusters remember attorneys who do not pro-vide documentation, do not respond to phone calls and wait until the last min-ute to file suit. While there are some times when this has to happen—for instance, if your client has not finished treating—you still need to respond and communicate.

4. Never take a case you cannot try. Attorneys frequently file claims in hopes they will get a quick settlement. The majority of cases need to be evalu-ated and approached as if you will take them to trial. If an adjuster feels you do not intend to take the case to trial, it lowers the settlement value.

5. First-party and third-party claims are different. Cases involving third-party claims are handled dif-ferently by an insurer than first-party claims. In a third-party claim, the only leverage you have with the insur-ance adjuster is a potential judgment

against the insured and defense costs. In first-party claims, the standards are different. Those claims give you addi-tional leverage as the potential exists for attorney’s fees, treble damages and prompt pay damages under Sections 541 and 542 of the Texas Insurance Code if the adjuster does not handle the claim correctly.

6. Property damage and personal injury claims are different. Property damage claims are evaluated solely on the cost to repair or replace property damage, rather than by factoring the cost of treatment for pain and suffer-ing. Make sure you are knowledgeable about reparability and costs. Consult with an expert as in a personal injury claim.

7. Remember you are dealing with human beings. Many attorneys

feel they get more by trying to intimi-date or bully the adjuster. My experi-ence is that while this can work in the short run, over time more is achieved by treating the insurance adjuster with respect. First, most adjusters deal every day with claimants pushing for more money. Bullying and intimidation is simply less successful, as you are just another on the list. Second, harsh tac-tics tend to breed resentment, reaction and intransigence. By the same token, treating others with respect tends to provoke a response. Better settlements can be obtained by developing a rap-port with the adjuster. HN

Stephen Smith is Chair of the Insurance and Defense Section at Underwood Perkins P.C. He has 25 years of experience in assisting insureds and insurers in handling claims and can be reached at [email protected].

by StePHen SmitH


Working With Adjusters for the Non-Specialist

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The Internet permeates all aspects of modern life, facilitating communi-cations, business transactions, news gathering and dissemination, adver-tisements and consumption, to a degree never accomplished by any other medium. As such, the Internet is increasingly a place where civil and criminal wrongs are committed and is, accordingly, a potential repository of evidence.

By its nature, however, the Inter-net is fluid and ever-changing. What is there and causing harm today could very easily be removed by the time a lawsuit is filed or discovery begins, only to rear its ugly head again when the dust settles. This can be especially applicable in cases involving defama-tion or intellectual property infringe-

ment in which the infringing or defam-atory content needed to prove a plain-tiff ’s case can be removed by the defen-dant before the case is tried or even filed.

In a perfect world, plaintiffs or their attorneys will be able to capture evi-dence from the Internet when they see it, either by converting the pages to PDF documents or otherwise capturing the content in a permanent form. It is often the case, however, that poten-tial litigants are not able to capture infringing, defamatory or other eviden-tiary content before it is removed from the Internet, either because they did not think or know to do so or because they did not envision future litigation at the time.

Fortunately, there is a tool known as the WayBack Machine, which enables one to travel back in cyber-

time to view and capture content from web pages as they once appeared. The WayBack Machine, which resides at www.archive.org, is a service provided by the Internet Archive, a non-profit organization that has been capturing and cataloging the Internet since 1996.

The WayBack Machine captures Internet data by use of a web crawler which crawls from webpage to web-page taking snapshots of the data as it appeared on a given day and time. The snapshots are then cataloged by URL and date. One need only know the URL of the website in question to use this free service.

While the Internet Archive main-tains a multi-petabyte repository of historical web data, it is by no means a perfect and complete library of everything that was ever on the Inter-net. Most sites are not captured every day, but only periodically as the web crawler reaches them. And, those sites that are captured will not be accessi-ble through the WayBack Machine for 6 to 24 months. Moreover, the Way-Back Machine does not capture pass-word protected sites or sites where the webmaster has taken appropriate steps, such as including a robot.txt file, to prevent the crawler from capturing the site.

Despite these shortcomings, the WayBack Machine is often an extremely useful litigation tool that can provide crucial evidence of con-tent that has been removed from the Internet. Such evidence may be of lit-tle value, however, unless it is deemed admissible.

The primary obstacles to the admis-sion of evidence obtained from the WayBack Machine are authentication and hearsay. See Fed. R. Evid. 802, 901. The authentication obstacle may generally be satisfied by an affidavit

from the Internet Archive explain-ing how the WayBack Machine works and identifying the pages at issue as printouts from the Internet Archive’s records. The Internet Archive will provide its standard notarized affidavit to that effect for a fee of $350 (plus $20 per authenticated URL). For an addi-tional cost, the Internet Archive can increase the scope of the request and may even modify its standard affida-vit to fit the needs of a particular case, although the standard affidavit should generally be sufficient to satisfy Rule 901.

As for hearsay, it is often the case that archived data is not being offered for the truth of the statements on the website, but rather to show that untrue defamatory statements were made or that infringing material was displayed. Also, the archived pages may contain non-hearsay admissions of the offering party’s opponent. In those instances, the hearsay rule would not bar admis-sion of the archived pages. The Inter-net Archive’s affidavit may also be used to overcome a hearsay objection by establishing that the archived pages fall under the business records excep-tion. See Fed. R. Evid 803(6).

A number of courts have admit-ted evidence obtained by use of the WayBack Machine, and the use and admission of such evidence is likely to rise as familiarity with the Inter-net Archive and the need for Internet evidence continues to grow. Knowing how to use the WayBack Machine and authenticate evidence derived from it is an invaluable tool for any litigator to have. HN

Jason Bloom is an attorney in the Business Litigation, Intellectual Property Litigation, and Social Media practice groups at Haynes and Boone, LLP. He can be reached at [email protected].

by JASon P. bloom

Obtaining and Using Deleted Internet Evidence

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In Texas, the common interest doc-trine embodied in Rule 503(b)(1)(C) of the Texas Rules of Evidence creates a privilege for a client to prevent the dis-closure of confidential communications made for the purpose of facilitating the rendering of professional legal services when such communications are made by the client’s lawyer to a lawyer represent-ing another party in a pending action and concerning a matter of common interest. It is not an independent privilege, but rather an exception to the general rule that no attorney-client privilege attaches to communications that are made in the presence of or disclosed to a third party.

While the common interest doctrine is sometimes referred to as the “joint cli-ent” privilege, the “joint defense” privi-lege and the “common interest” privilege, each involve distinct doctrines that serve different purposes. See In re XL Specialty Insurance Company and Cambridge Inte-grated Services Group, Inc., 2012 WL 2476851 (Tex. June 29, 2012).

Finding the term “allied litigant” privilege more appropriate a term for the “common interest” privilege, the Texas Supreme Court in XL Specialty reiterated that the “common interest” privilege only applies where there is active, ongoing liti-gation. This is also known as the “pend-ing action” requirement. Moreover, the common interest privilege does not exist just for co-defendants, but applies to any other party in the pending litigation.

Because the “common interest” priv-ilege protects communications made between a client or the client’s lawyer to another party’s lawyer or representative of the lawyer, the “common interest” privi-

lege only applies when the parties have separate counsel and does not extend to communications made directly between the parties themselves. Applying the foregoing principles, the Texas Supreme Court in XL Specialty found the “common interest” privilege did not apply to com-munications between a worker’s compen-sation insurer’s attorney and the insured-employer in an administrative proceeding regarding an injured employee’s claim for benefits.

Importantly, the “common interest” doctrine requires that the parties have a common legal interest. There must be a need for a common defense rather than merely a common problem. The underly-ing rationale of the privilege is that when parties must work together by necessity, a privilege must be afforded to their joint attorney client communication and work product or else those protections would be hollow. However, the privilege must be construed narrowly to cover only the nec-essary consultation by legal advisors and clients. So the privilege does not apply to joint consultations where there is no common interest to be promoted such as when the parties meet to discuss claims against each other. Adverse parties can-not create a “common interest” just by unilaterally declaring it so. Thus, the mere existence of a confidentiality agree-ment between parties is not, in itself, suf-ficient to protect joint communications from discovery.

Examples of parties with a common legal interest include indemnitor/indem-nitee, vicarious liability of employer for employee or alleged conspirators in an antitrust case. In those situations, the par-ties have a common interest because the liability of one may, by operation of law,

be imputed to another. They must work together, and shared information must be protected or the attorney-client privilege and work product doctrine would be illu-sory. Parties do not have a “common inter-est” just because they have (or have cre-ated) a common adversary. For example, there is no common interest just because the defendants are all charged with vio-lating the same patent. But if the plain-tiffs allege a conspiracy to violate the pat-ent, then the defendants might have had an identical legal interest in establishing that no such conspiracy took place.

In sum, the “common interest” privi-lege protects confidential communica-tions made between a client or a repre-sentative of the client or the client’s law-

yer to a lawyer or a representative of a lawyer representing another party in the litigation for the purpose of facilitating the rendition of professional legal services provided that: (1) the parties exchang-ing the privileged material share a com-mon legal interest, as opposed to a mere business interest; (2) the documents and communications are shared in further-ance of the common legal interest; (3) the sharing of the privileged information takes place during pending litigation; and (4) the parties reasonably expect that the shared documents and communications will remain confidential. HN

Jennifer Kenchel is a member at Cozen O’Connor. She can be reached at [email protected].

by Jennifer K. KencHel


Common Interest Doctrine

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Licensed in 1941Royal H. Brin, Jr.Robert S. Strauss

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Licensed in 1949Jack E. Brady William N. HamiltonHarold L. HitchinsWilliam L. Keller Cecil G. MageeB. Thomas McElroy Hon. Ted Z. Robertson

Licensed in 1950George C. Anson Albert L. Bartley, Jr.Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. GarnerHenry Gilchrist Wayne Hancock William C. Herndon H. Louis Morrison, Jr.William C. Odeneal A.W. Patterson, Jr.Ralph W. Pulley, Jr.F.W. Reese Robert G. Vial

Licensed in 1951Hon. L.A. Bedford, Jr.Ramsey ClarkM. Wayne Cummings H. Sam Davis, Jr.James E. Day, Jr.William C. Dowdy Jr.Zack E. Mason Joseph W. McKnightJohn L. RoachHon. Thomas B. Thorpe H.E. Walker, Jr.J. Ralph Wood, Jr.

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Licensed in 1953Donald C. Alexander Joe Don Denton Roy W. Howell, Jr.James A. Knox Hon. James W. MastWilliam R. McGarvey

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Licensed in 1955Winston L. Adkins Hon. Ted M. Akin Dennis G. Brewer, Sr.Charles D. Cabaniss Eugenio Cazorla Thomas N. Griffith Jess T. Hay Lawrence P. Hochberg Jack Pew, Jr.Anthony G. Riddlesperger Forrest Smith Robb StewartLee D. Vendig

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Licensed in 1957Barton E. Bernstein William F. Bowles

Bill H. BristerDon T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin, Jr.Tom JamesWilliam C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Morton A. Rudberg Merlyn D. Sampels J. Richard SandersonClay C. Scott, Jr.Carl A. Skibell Jason B. Sowell, Jr.Hon. Milton Sturman Robert H. Thomas Louis J. Weber, Jr.

Licensed in 1958Burt Berry Walton P. Bondies, Jr.R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis F. Lynn Estep, Jr.Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr.Bill C. Hunter Jerry Lastelick John E. LawhonJohn T. McCully John H. McElhaney Robert H. PowerWilliam T. Satterwhite Harry R. Shawver, Jr.Dan W. Stansbury Jack R. Wahlquist Emory L. White, Jr.Barney T. Young Norman A. Zable

Licensed in 1959Tom A. Blakeley, Jr.Allen Butler Durwood D. CrawfordMarshall J. Doke, Jr.Robert A. FanningA.D. “Gus” FieldsFrederick W. Fraley, III

Larry L. GollaherJames J. HartnettJack W. HawkinsNorman P. Hines, Jr.James H. (Blackie) Holmes, IIIHerbert L. Hooks Ray Hutchison Jerry P. Jones Richard A. Lempert George R. Milner George David Neal Donald F. Padgett Burton H. PattersonPaul L. SalzbergerEdwin M. SigelJoe A. StalcupCharles M. SuppleRobert C. Taylor

Licensed in 1960E. Karl Anderson Anthony Atwell Paul E. Ave Lester V. Baum P. Oswin Chrisman Edward A. Copley David S. Curtis Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr.John L. Lancaster, IIIJoe H. Loving Jr.Hon. Robert B. Maloney Tom D. Matthews, Jr.Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers, IIIRobert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray, Jr.Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr.Donald A. Swanson, Jr.Arthur I. Ungerman William D. White, Jr.

Licensed in 1961Arch A. Beasley, Jr.John F. Boyle, Jr.William T. Burke, Jr.Adelfa B. Callejo Roy C. Coffee, Jr.

Jim E. Cowles Adair Dyer, Jr.Albert B. Fenton John A. GilliamDavid G. Glickman Jay Rodney KlineLarry M. Lesh Warren C. Lyon Clark J. Matthews, IIDonald C. McLeaishStan McMurryJohn W. PaynePaul W. PhyVirgil E. RogersJames T. RuddMiles L. SchulzeWade C. SmithSimeon R. TrotterPaul B. UnderkoflerFred D. WardChristopher M. WeilBen B. WestFletcher L. Yarbrough

Licensed in 1962Reyburn U. AndersonBernard B. Athey, Jr.Bruce Baldwin Charles G. BarnettJohn H. BoswellJoseph T. Cain George C. ChapmanGeorge C. DixieRobert E. Edwards Raymond J. ElliottChristie S. Flanagan Kenneth D. FullerHouston E. Holmes, Jr.A. Holt Irby Jimmy D. IvyTim K. KirkHon. Don KoonsHon. William F. Kortemier, IIDavid R. LatchfordO. Fred LohmeyerDonald J. MaloufLawrence R. Maxwell, Jr.Hon. John P. McCallFrank E. McLainWilliam H. McRaeCurtis W. Meadows, Jr.William C. Roberts, Jr.Norman R. RogersJohn Q. Stilwell, JD, PhDMark A. TroyJames A. Walters

EmEritus mEmbErsThe Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the Annual Meeting on Friday, November 2, 2012 at 3:30 p.m. to be recognized. To RSVP, please contact Mary Ellen Johnson at 214-220-7474 or [email protected].

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Domestic Relations: How to Make Your Case in Family Court

Wed., Nov. 14, 2012 8 a.m. to 10 a.m. • Belo Mansion - Dallas

This CLE discussion, led by Texas Lawyer senior reporter John Council, will provide you with new insights as Dallas County and Collin County judges share their perspectives on trial procedure, motion practice and how best to plead your client’s case in family court.

Subscribers: $50 • Nonsubscribers: $60 • At the door: $70(Fee includes breakfast.)

This event is pending 1.5 hours of CLE. To register, visit www.TexasLawyerEvents.com or call 214.744.7764.

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Judge Tena Callahan302nd District Court

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Life insurance is a contract between the insured policyholder and the insurance company. Payment of insurance benefits is controlled by the policy terms and the insured’s designation of beneficiary. How-ever, at times, someone other than the named beneficiary may have a viable claim to policy benefits. Examples include dis-putes involving current or ex-spouses, the insured’s possible lack of capacity, undue influence on the insured to change a desig-nation or the insured’s imperfect efforts to change a beneficiary designation.

Texas or Federal Law?The first step in analyzing a ben-

eficiary dispute is determining whether Texas or Federal law applies. This can be complex, but generally Texas law applies unless the insured obtained the policy through an employer. If the insurance was obtained as a benefit of employ-ment, it is likely that it will be a policy governed by a federal law commonly referred to as ERISA (Employee Retire-ment Income Security Act of 1974).

ERISA generally preempts state laws, particularly regarding claims for policy benefits. It generally overrides Texas law recognizing a community property inter-est of a spouse in the policy, as well as the Texas Family Code provision that effectively voids beneficiary designations in favor of an ex-spouse. ERISA favors

strict adherence to plan documents to aid predictability and uniformity for the benefit of the plan administrator. How-ever, the Supreme Court has left open the possibility that a competing claim-ant could bring suit against the desig-nated beneficiary after the beneficiary receives the policy benefits.

The Ex-Spouse as BeneficiaryIn Texas, a divorce generally operates

to revoke a prior beneficiary designation in favor of an ex-spouse. Texas Family Code § 9.301. Exceptions in the statute are limited and courts have been reluc-tant to find equitable exceptions.

The Spouse’s Community Property Claim

The current spouse may obtain the policy proceeds if the designation of an ex-spouse is invalidated under the Texas Family Code. Another scenario is when the policy designates a third party who is not the current spouse or an ex-spouse. This commonly occurs if the couple has separated but not divorced.

Texas is a community property state. Assets earned or acquired by either spouse during marriage are presumed to be community property. This applies to marriages dissolved by death, as well as by divorce. Under Texas law, a surviving spouse may have a claim for construc-tive fraud when an insurance policy was purchased with community funds for the benefit of a person outside the commu-nity.

Capacity and Undue InfluenceBeneficiary designations can be

challenged on the basis that the insured

either lacked the mental capacity to make the designation or was unduly influenced to do so. The evidence nec-essary to prove such claims is very simi-lar to that in a traditional will contest, although the capacity required to make a designation is theoretically greater than the capacity to make a will.

As noted, when ERISA applies, state laws are preempted. However, capac-ity and undue influence claims are still possible because they are not attacks on the designation based on reference to external documents or state laws regarding designations. Instead, they are attacks on the validity of the desig-nation document itself. Note, however, that ERISA does not allow for jury tri-als, so a judge will be the finder of fact for such claims.

The Attempted Beneficiary Change

Sometimes, the insured will attempt to change a designation, but fails to do so in the manner prescribed by the insurance company. The insur-ance company may reject the effort and ask the insured to make the desig-nation on the form and in the manner required by the company. Under Texas law, a beneficiary designation is effec-tive if it is in “substantial compliance” with the insurance company’s proce-dure, which has been defined as the insured’s doing all that he could rea-sonably have done to effect a change. Federal courts apply a similar standard in ERISA cases. HN

J. Michael Young is an attorney at Sanders, O’Hanlon, Motley & Young. He can be reached at [email protected]

by J. micHAel young


Recognizing Life Insurance Beneficiary Disputes

Court of Appeals at Belo

On September 24, justices from the Fifth District Court of Appeals heard a live oral argument at the Belo Mansion in front of 250 DISD students. The presiding justices included (left to right) Hon. Lana Myers, Hon. David Bridges and Hon. Molly Francis.

www.jamsadr.com


Local courts have recently seen a dramatic increase in the filing of hail damage actions. Many of these actions are not conventional lawsuits, but requests for the judicial appointment of an appraisal umpire. Considering that hail (and hail damage claims) is nothing new to North Texas, what has spawned the recent increase in these non-traditional filings?

To the insurance practitioner it is obvious—State Farm Lloyds v. Johnson 290 S.W.3d 886, 889-90 (Tex. 2009).

Prior to Johnson, appraisal was limited to a narrow range of dis-putes involving the “amount of loss.” Appraisal was not appropriate to deter-mine questions of causation, coverage or liability. It was appropriate only

when the carrier or policyholder agreed on the existence of covered damage, but disagreed on the cost to repair such damage.

Johnson changed everything. In Johnson, the Texas Supreme Court confirmed the historical view that appraisal was intended to address “damages” and not “liability,” but it muddied the water in distinguishing one from the other.

Typical disputes involve questions as to the existence of hail damage or the cause of such damage (either hail or pre-existing conditions). These questions historically fell outside the appraisal process and conventional lit-igation offered the parties’ only vehi-cle to resolve such issues.

The Johnson Court changed that, stating: if “appraisers can never allo-cate damages between covered and excluded perils . . . appraisals can never

asses hail damage unless a roof is brand new . . . .” Johnson, 290 S.W.3d at 892-93. Seizing on this language, courts have generally interpreted Johnson as permitting appraisers to resolve ques-tions of causation.

Virtually every disputed hail dam-age claim is now subject to appraisal. This has spawned a cottage industry in which public adjusters, contractors and “claim consultants” go door-to-door marketing their services to build-ing owners in pursuit of hail damage claims. When the claim cannot be resolved through the claim adjustment process, it is put into appraisal.

A close examination of the recent rash of appraisal-related filings in local courts suggests many of the underlying hail claims are not being pursued by the policyholder, but by public adjusters, contractors and “claim consultants” acting on the policyholder’s behalf. A lawyer is hired to file the petition to appoint an umpire. But once the umpire is appointed, it is back to the non-judicial world of appraisal where no procedural rules or ethical codes of conduct exist, and only the terms of the insurance policy govern the pro-ceeding.

This results in a process ripe for abuse. For example, if a contrac-tor appoints his long-time friend as appraiser, all that is needed to ensure a favorable result is the appointment of a friendly umpire. Fortunately, insur-ance policies generally require that

the appraisers and umpire be compe-tent and disinterested, meaning they do not have any financial interest in the award. This provides a remedy if an appraiser’s or umpire’s competency and/or partiality is subject to chal-lenge.

However, once an appraisal award is issued, little can be done. Success in disputing an appraisal award is unlikely. Courts have repeatedly stated that “[e]very reasonable presumption will be indulged to sustain an appraisal award.” Appraisal awards may be chal-lenged only where the award: (1) is made without authority; (2) results from fraud, accident, or mistake; or (3) was not made in substantial compli-ance with the policy.

So what does the future hold? Until the Texas Supreme Court recognizes the unintended consequences of John-son and restricts appraisal to its tradi-tional, pre-Johnson scope, it is likely the wave of appraisal-related filings will continue (not only in hail claims, but also hurricane/wind damage claims). Additionally, carriers should consider amending their policy language to clearly limit the appraisal process to the narrow situation in which the par-ties agree on the existence of covered damage, but disagree on the cost to repair such agreed damage. HN

Steven Badger and Lindsey Bruning are attorneys at Zelle Hofmann Voelbel & Mason LLP. They can be reached at [email protected] and [email protected], respectively.

by Steven badger and LindSey bruning

Focus Torts & Insurance Law

Appraisal Since Johnson – What The Hail Is Going On?

Candidates from St. Mary’s University School of Law, Texas Tech University School of Law and the University of Houston Law Center will be available for interviews through the Metroplex Legal Job Fair. Employers will have the opportunity to pre-screen the materials of law students and recent graduates, and pre-select 100% of their candidates for interviews. Candidates will interview at employers’ offices.

To register, contact:Suzanne Patrick • [email protected] • (210) 431-2265Ashley Withers • [email protected] • (806) 742-3990 ext. 232Kourtney James Perry • [email protected] • (713) 743-5622

Need a Law Clerk? Need an Associate?Why not let them come to you!

M E T R O P L E X L E G A L J O B F A I R

METROPLEX LEGAL JOB FAIR9 a.m. – 5 p.m.Friday, February 15, 2013

~ In Memoriam ~Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit www.dallasbar.org.Webber Beall, Jr. (1932-2012), a 1959 graduate of the SMU Dedman

School of Law

Norma Lea Beasley (1931-2012), a 1954 graduate of the University of

Arkansas School of Law

Clarence Bentley (1921-2012), a 1948 graduate of Baylor Law School

William Richard (Dick) Bernays (1917-2012), a 1941 graduate of

Northwestern University School of Law

John Biggers (1931-2012), a 1955 graduate of the SMU

Dedman School of Law

John W. Collins, Jr. (1922-2011), a 1949 graduate of Baylor Law School

Edward Junius Drake (1924-2011), a 1949 graduate of the

University of Texas School of Law

Thomas L. Fiedler (1925 -2012), a 1953 graduate of the SMU


Thomas Freytag (1940-2012), a 1966 graduate of

University of Michigan Law School

Ernest Leroy Hallman, Jr. (1915-2012), a 1939 graduate of the


Linda F. Jenkins (1951-2011), a 1979 graduate of the St. Mary’s

School of Law

Lester A. Levy (1922-2012), a 1947 graduate of the University of

Texas School of Law

John McCormack (1917-2012),a 1948 graduate of Columbia Law School

Edwin McNees (1925 -2012),a 1949 graduate of the SMU


Harold A. Pollman (1924-2012), a 1951 graduate of the


Janet F. Resetar (1951-2011), a 1987 graduate of the Louisiana State

University School of Law

Harry P. Stuth, Jr. (1929-2011), a 1952 graduate of the

St. Mary’s School of Law

Eldon Vaughan (1921-2011), a graduate of the

SMU Dedman School of Law

Thomas L. Wheeler, Jr. (1949-2012), a 1977 graduate of the SMU Dedman School of Law

Charles Winikates (1927 -2012), a 1950 graduate of the

SMU Dedman School of Law

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In a 5-4 decision, a split Texas Supreme Court held in Texas Mutual Insurance Co. v. Ruttiger that workers’ compensation claim-ants can no longer assert a common-law claim for breach of the duty of good faith and fair dealing. 55 Tex. Sup. Ct. J. 912 (Tex. 2012). The decision overruled the Court’s decision in Aranda v. Insurance Co. of North America.

The duty of good faith and fair deal-ing arises out of a special trust relationship between the parties. Twenty-five years ago, the Court expressly recognized a special rela-tionship apart from a fiduciary relationship in Arnold v. National County Mutual Fire Insur-ance Co. In Arnold, the duty of good faith and fair dealing was imposed on an insurer based on the disparity of bargaining power and the exclusive control that the insurer exercised over the processing of claims. Over the years, the Court has been reluctant to impose a similar duty in other relationships.

But it did in Aranda. Decided one year after Arnold, the Court in Aranda extended the duty of good faith and fair dealing to injured workers suing workers’ compensation carriers. The Court explained that workers’

compensation claims processing was func-tionally indistinct from first-party insured claims processing in three ways: (1) the dis-parity of bargaining power; (2) the exclu-sive control that the insurer exercised over the processing of claims; and (3) the ability of carriers to make arbitrary decisions to pay or delay a valid claim, leaving the injured employee with no immediate recourse.

Following Aranda, the 72nd Legislature overhauled the workers’ compensation sys-tem in 1989 with the Workers’ Compen-sation Act (WCA). Under the WCA, the Texas Department of Insurance regulates claims by establishing processing standards, ordering expedited reviews, issuing bind-ing orders for payment and setting up Ben-efit Review Conferences (BRCs), which are non-adversarial, informal dispute resolution meetings between the parties.

It was this revision that the Court focused on in Ruttiger. In that case, a compensation insurance carrier initially denied benefits to Timothy Ruttiger, alleging the injuries were not work-related. Three months after the dis-pute began, Ruttiger finally requested a BRC and the parties settled. Ruttiger then sued the carrier and alleged, among other claims, bad faith in the processing of the claim.

The jury sided with Ruttiger, but last summer the Court ruled that Ruttiger take nothing under the other claims and sent the common-law bad faith claim back for recon-sideration by the First Court of Appeals in Houston. Before the appellate court acted, the Court granted a request for a rehearing on that issue.

On rehearing, the Court held the bad faith claim distorted the new WCA system and frustrated the Legislature’s intent to resolve the dispute expeditiously. It noted that an incentive existed for an injured worker to delay seeking immediate relief because even if a carrier complied com-pletely, as Texas Mutual did, it could still be liable under common law.

The dissent argued that the Legislature did not abrogate the claim in the WCA, and in fact recognized it, and thus the claim was compatible with the revised system. The majority countered that the dissent not only incorrectly interpreted the WCA, but also failed to address“[t]he essential question” which was “to what extent the judiciary will respect the Legislature’s function of address-ing the concerns and adjusting the rights of parties[.]”

Justice Willett’s concurrence provided

perhaps a stronger argument: Aranda was no longer needed because the WCA’s changes remedied the concerns underly-ing Aranda. Once the conditions no longer existed, the bad faith claim was no longer necessary.

The Court’s decision can be expected to reduce litigation over claims practices. It eliminates one of the most frequently pleaded causes of action in workers’ compen-sation disputes in Texas. The claimant must now rely solely on the process set out by the WCA and should generally request a BRC as soon as it is apparent that the insurer will contest the claim.

The potential liability for insurers is also reduced, thus providing them with increased predictability when making decisions on challenging claims. Going through the BRC process may cost the parties more time and effort initially, but it will ultimately resolve disputes more quickly than litigation. With more claims settled prior to litigation, legal costs may well decrease which could lead to a reduction in rates for employers. HN

Octavio Arturo Dominguez is an attorney at Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, LLP. He can be reached at [email protected].

by octAvio A dominguez

Focus Torts & Insurance Law

Supreme Court Eliminates Bad Faith Tort?

The DBA Directory Photographer will available to take photos for the 2013 Directory on:

Photo session is FREE, requires no reservation and only takes 5 minutes.

Photos may be purchased for personal use. Questions? Judi Smalling at [email protected] or (214) 220-7452.

Want to Update Your Directory Photo?

Tuesday, November 13, 9 a.m. to 3 p.m. at Belo Thursday, November 15, 9 a.m. to 1 p.m. and

during the New Member Reception 5 p.m. to 8 p.m.

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FROM THE DAISNatalie L. Webb, of The Webb Family Law Firm, P.C., spoke at the Advanced Family Law Conference in Houston on the topic of “Screening the Case.”

Kenneth C. Johnston, of Kane Russell Coleman & Logan PC, spoke on “Bank Overdraft Fee Litigation and Regulatory Developments.”

Kirby Drake, of Klemchuk Kubasta LLP, addressed the American Chemical Society on “IP Issues in Advertising and Promo-tion of the Chemical Industry.”

KUDOSJustice Douglas S. Lang, of the Fifth Dis-trict Court of Appeals, has been elected Secretary of the American Inns of Court Foundation. He has also been named the 2012 recipient of the Citation of Merit from the University of Missouri School of Law, the highest award conferred by the Law School.

Victoria Neave, of Weil, Gotshal & Manges LLP, has been accepted into the 2012 Dallas Association of Young Lawyers Leadership Class.

Michele Wong Krause, of The Wong Krause Law Firm, will receive the 2012 Louise B. Raggio Award from the Dallas Women Lawyers Association.

David M. Bennett, of Thompson & Knight LLP, has been named to lead the firm’s Corporate Reorganization and Cred-itors’ Rights Practice Group.

Julie H. Quaid, of Quaid & Quaid LLC., has been named to the Board of Directors of Texas Loves Children. Christopher M. Farish, also of the firm, has been named to the Board of Directors of the Collin

County Bar Association and the Interna-tional Academy of Collaborative Profes-sionals and the Board of Directors of the Legacy Court Foundation.

Michael M. Boone, of Haynes and Boone, LLP, received 2012 Methodist Health System Folsom Leadership Award. Larry Pascal, also of the firm received the 2012 Member of the Year award from The World Services Group.

Audrey Moorehead, a solo practioner, has been appointed to the Texas Crimi-nal Defense Lawyer’s Project Committee, appointed to the Dallas County Child Welfare Board by the Dallas County Com-missioner’s Court, and elected by the Board of the State Bar of Texas to serve as Co-Chair of the Council of Chairs for the 2012-2013.

ON THE MOVEMary Louise Phelps and Michael D. Wysocki have joined McCurley Orsinger McCurley Nelson & Downing, L.L.P. as Associates.

Elizabeth M. Ryan, David Y. Sillers and Jason E. Wright joined Weil, Gotshal & Manges LLP as Associates.

Eric Van Horn has joined Wick Phillips Gould & Martin, LLP as Associate.

Adam Dougherty, Alejandro (Alex) Arellano and Bradley E. Levy have joined Winstead PC as Shareholder and Associ-ates, respectively.

Mary Goodrich Nix, Kelly C. Ganz-berger and Derek H. Sparks have joined Munsch Hardt Kopf & Harr, P.C. as Share-holder and Associates, respectively.

Vince Murchison has formed the Mur-

chison Law Firm located at 325 North St. Paul Street, Suite 2700, Dallas, Texas 75201.

John C. Dickey has joined Dykema Gos-sett PLLC.

Sarah P. Hicks has joined Humphreys & Partners Architects, L.P. as General Counsel.

Jae Ellis has joined Huron Consulting Group as Senior Director.

Amy E. Davis has joined Christiansen Davis Bullock, LLC as a Named Partner.

Paul Storm has joined Gardere Wynne Sewell LLP as Partner.

Edel Cuadra has joined Quilling, Selander, Lownds, Winslett & Moser, P.C. as Share-holder. Michael Feiler, Rachel Hytken, Megan Johnson, Kelly Miaw and Kendall Yow have joined the firm as Associates.

Brandon C. Wilson has joined Taber Estes Thorne & Carr PLLC as Associate.

Judge Teresa Guerra Snelson has joined the Dallas County District Attorney’s

Office as the Chief Attorney for the Civil Division.

Marc A. Hubbard has formed the intel-lectual property law firm of Hubbard Law, PLLC, located at 740 E. Campbell Road, Suite 550, Richardson, Texas 75081. Phone: (214) 396-6000.

Meghan Nylin and Tracy G. Smith have joined Thompson & Knight LLP as Asso-ciates.

Kamal Jafarnia has joined Alston & Bird LLP as Counsel.

Lindsay Germano has joined Weil, Got-shal & Manges LLP as Associate.

Paul V. Downey has joined Kane Russell Coleman & Logan PC as Senior Counsel.

Guy I. Wade, III has joined the firm of Derryberry Zips Wade Lawhorn, LLC as Partner.

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at [email protected].

In the News November

United States Postal Service -- PS Form 3526 Statement of Ownership, Management, and Circulation (1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 14, 2012. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: Twelve. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or Gen-eral Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2011. (15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 11,335; 14,330. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,615; 2,597. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,478; 11,455. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 11,093; 14,052. (15d1) Free or Nominal Rate Out-side-County Copies Included on PS Form 3541: 45; 44. (15d2) Free or Nominal Rate In-County Copies Includ-ed on PS Form 3541: 32; 30. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 28; 25. (15d4) Free or Nominal Rate Distribution Outside the Mail: 81; 106. (15e) Total Free or Nominal Rate Distribution: 186; 205. (15f) Total Distribution: 11,279; 14,257. (15g) Copies not Distributed: 56; 73. (15h) Total: 11,335; 14,330. (15i) Percent Paid: 98.35%; 98.56%. (16) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2012, issue of this publication. (17) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 14, 2012. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

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OFFICE SPACE2 rooms approx. 346 sf in total for rent within Dallas Immigration Law Firm. Other common areas available for Use. $589/month. LBJ Fwy and Abrams Rd. Ideal for Family Law Attorney. Call for further details. (214) 570-8100.

Upscale, furnished office space for rent within small law firm. Great location at 9400 N. Central Expressway (Central and Park Lane). Two window offices plus space for an assistant. Rent includes cov-ered parking and access to kitchen and conference rooms. Postage meter, scan-ner, copies, fax, phone and high speed internet. Call (214) 365-9000 ext. 307 or email [email protected].

Medium size Tax Law Firm, AV Pre-eminent rated, has Class A space avail-able for lease and space sharing. Small and large offices with midtown views of downtown. Prefer real estate experi-ence. Opportunity for referral business. (214) 691-7781 - ask for Kelly.

North Dallas. Law firm located at Lincoln Centre has two partner size offices, one small office and cubicles available. Easy access to Tollway and LBJ; two conference rooms; break room/kitchen; copiers; postage machine. Email: [email protected] for more information.

Plano Office Space. Easily accessible to George Bush and Dallas Tollway. Two Executive offices with plenty of support staff space available. One is approximately 900 square feet; second office is approximately 500 square feet, both on the 2nd level. Full amenities. For further information please contact Jennifer at (972) 380-4222.

Office available in converted historic house in Uptown. Includes hardwood

floors, fireplace, and built-in bookcase. Base rate is $1,200 per month. Call (214) 563-3157 for inquiries.

Office Space near old downtown Plano and Collin Creek Mall. One block East of Central Expressway (75). Prime first floor location. One window office approximately 18 x 12 ft. and one small staff office available. Practice in a relaxed yet professional environment which includes access to conference room, kitchen, DSL and reception area. Lots of accessible visitor parking. Call (972) 422-2424 for details.

Unfurnished office space for rent with Uptown family law/business litigation firm. Great location at Cedar Springs and Maple. Two window offices plus an open workspace. Total of approximately 485 sq. ft. Rent includes underground parking, receptionist, and access to shared kitchen and conference rooms. Postage meter, copier, scanner, and fax also available if needed. Possibility of referral work. Please call (214) 520-7494 or email [email protected] for details.

Large furnished office space avail-able within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a pos-sibility of overflow real estate work. No long term commitment and a monthly rate of $650.00. Call (214) 520-0600

POSITION AVAILABLEHealth Law Attorney Needed. Experi-ence in healthcare regulatory and pay-ment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers.

We prefer a problem solver with a dis-ciplined work ethic, excellent writing skills, good attitude who is self-moti-vated and will participate in marketing & seminar presentations. Please email resume to [email protected].

Established Real Estate Boutique in Dal-las seeks attorney with 5 or more years of experience in commercial real estate. Candidate must demonstrate excep-tional skills, attention to detail and an ability to handle direct client contact. Experience in home builder representa-tion, a plus. Email your resume to [email protected].

Established Real Estate Boutique in Dallas seeks paralegal experienced in commercial real estate, including abil-ity to review title and prepare form documents. Email your resume to [email protected].

POSITION WANTEDHighly motivated high school senior seeking paid after school job (2-6 p.m.) in small law firm to gain experience. Contact Griffin Lewin at [email protected].

SERVICESEconomic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic con-sulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic and finance experts can help you with a variety of litigation ser-vices. Thomas Roney LLC serves attor-neys across Texas with offices in Dal-las, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. [email protected]. “We Count.”

Mexican Law Expert - Attorney, law professor testifying since 1997 in

U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral dam-ages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. [email protected].

Legal Document Retrieval, Inc. 800-487-2245. Immediate access to copies of documents from active and closed files from Courts, Archives and Govern-ment Agencies. Property, Titles, Assets, Liens search. Legislative Intent Docu-ments. Service of process in states and abroad. Contact: [email protected].

DIAMOND AND GOLD BUYER Buying all types of Diamonds, Imme-diate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089.

KILLINGSWORTH Aircraft Valua-tion Service LLC. Specializing in Gen-eral Aviation. Fixed wing and Rotorcraft. Accredited by: American Society of Appraisers. Member of Forensic Expert Witness Association. www.kairvals.com, www.appraisers.org. (281) 796-4812.

Need Process served in the DFW area? Get fast results. Call Mike McCully, Licensed Process Server at (972) 998-6313 or email [email protected].

To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email [email protected].

Classifieds November

Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career

Center. www.dallasbar.org/career-center.

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NEED TO REFER A CASE?

The DBA Lawyer Referral Service Can Help.

Log on to www.dallasbar.org/dallas-lawyer-referral-service

or call (214) 220-7499.

DAYL Foundation Annual Fellows

LuncheonKeynote Speaker:

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Thursday, December 13, 2012

11:30 a.m. at BeloFor ticket and table information, contact

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www.koonsfuller.com

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